Madras High Court
The Vellore Kalaspalayam Tukkaram vs The Managing Director on 20 August, 2014
Bench: Sanjay Kishan Kaul, M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20-8-2014 CORAM THE HONOURABLE MR.SANJAY KISHAN KAUL, THE CHIEF JUSTICE AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN WRIT PETITION No.786 of 2014 The Vellore Kalaspalayam Tukkaram Bajanai Koil Street (Filterbed Road) Residents and Business Men Welfare Association Rep. By its President V.R.Vijayakumar having its office at No.35, Teachers Home Complex Filterbed Road, Vellore 1. .. Petitioner vs 1.The Managing Director TASMAC, CMDA Building Gandhi Nagar Egmore Chennai 8. 2.The Manager IMFS Depot TASMAC Ltd., Tamil Nadu Warehousing Corporation Ltd., Katpadi Road, Vellore 3.The District Collector Vellore District, Vellore 4.The Superintendent of Police Vellore District, Vellore 9 .. Respondents Writ petitions filed under Article 226 of the Constitution of India praying for issuance of a writ of mandamus directing the respondents to remove the TASMAC Shop No.11093 and not to open new TASMAC Shop in Door No.39/3 in Tukkaram Bajanai Koil Street (Filterbed Road), Vellore. For Petitioner : Mr.R.Margabandhu For Respondents : Mr.S.Muthuraj for RR1 & 2 Mr.S.T.S.Moorthy Government Pleader for RR3 & 4 ORDER
(Order of the Court was made by THE HON'BLE THE CHIEF JUSTICE) The petitioner by the present Public Interest Litigation (PIL) seeks removal of the TASMAC Shop No.11093 alleging that it is in breach of the norms. It is also alleged that the floating population of the State consumes alcohol obstructing public and behaves in a disorderly manner causing law and order problem. The communications addressed by the petitioner Association have not resulted in shifting of the shop though the Governmental authorities accepted that if continued nuisance was found, they may consider shifting of the shop.
2.The counter affidavit filed by the District Manager of Tamil Nadu State Marketing Corporation Ltd., (TASMAC), has referred to Rule 8(1) of TASMAC Retail Vending (in Shops and Bars) Rules, 2003 to submit that the present shop nowhere violates the distance norms. It has further been averred that even where shops are located as per norms, if there are specific/genuine complaints, such TASMAC shops are being removed and relocated. The shop in question is stated to be existing in the same locality for more than 20 years and even before the commencement of TASMAC retail shops, private wine shop was functioning from the same locality. There appears to be no proposal at present to shift the shop.
3.The petitioner however is insisting that the shop is within the prohibited distance.
4.The result of the aforesaid is that it is one affidavit against other affidavit and disputed questions of fact are raised qua the location of the shop from certain institutions which would bring it within the prohibited area. This can be established only in evidence and thus cannot be decided in the present writ proceedings.
5.We may also notice another aspect of the matter arising from the location of nuisance being created. In TAMIL NADU STATE MARKETING CORPORATION LTD. Vs. R.M.SHAH AND OTHERS ((2010) 8 MLJ 304), Section 133 of the Code of Criminal Procedure, 1973 dealing with abetment of nuisance has been discussed to come to the conclusion that if such a nuisance is caused by any trade or profession, it is open to an aggrieved party to move the DM/SDM under the said provision irrespective of the fact that there may be a TASMAC shop which complies with the norms. This is of course another remedy available to the petitioner and if the petitioner is of the view that there is nuisance, the same shall be established in those proceedings.
6.We thus close the writ petition with liberty to the petitioner to avail of the alternative civil/criminal proceedings while simultaneously directing that the local authorities and TASMAC must ensure that norms are followed and merely because of the disputed facts being involved in the present petition, it should not be treated as a licence by the respondents not to play their role for ensuring the absence of any nuisance. No costs.
(S.K.K.,C.J.) (M.S.N.,J.) 20-8-2014 Index: yes/no nsv To:
1.The Managing Director TASMAC, CMDA Building Gandhi Nagar Egmore Chennai 8.
2.The Manager IMFS Depot TASMAC Ltd., Tamil Nadu Warehousing Corporation Ltd., Katpadi Road, Vellore
3.The District Collector Vellore District, Vellore
4.The Superintendent of Police Vellore District, Vellore 9 THE HON'BLE THE CHIEF JUSTICE AND M.SATHYANARAYANAN, J.
nsv WP No.786 of 2014 Dt: 20-8-2014